USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-2391
UNITED STATES,
Appellee,
v.
JEFFREY M. GALLANT,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
and Carter,* District Judge.
______________
____________________
Thomas J. Connolly for appellant.
__________________

Michael M. DuBose, Assistant United States Attorney, with w

__________________
Jay P. McCloskey, United States Attorney, was on brief for appellee
________________
____________________
June 1, 1994
____________________

_____________________
*Of the District of Maine, sitting by designation.

Per Curiam.
___ ______
Gallant
for

In this appeal,

challenges, on three

manufacturing

and

defendant Jeffrey M.

separate grounds, his sentence

possession

of

marijuana.

After

carefully considering defendant's arguments, we affirm.

I.
I.
__
BACKGROUND
BACKGROUND
__________
On
Rumford,

May

Maine,

5,

1992,

Police

Captain

Department,

Tim

Bourassa

along with

of

the

other

law

enforcement officers,
defendant's trailer.

executed
Pursuant

seized the following items:

and five feet in

a state

search

warrant

at

to their search, the officers

33 marijuana plants between four

height and growing in pots;

four harvested

plants of the same size; 155 marijuana plants between one and
three feet in height and growing
with dried

in paper cups; a bag filled

marijuana leaves; two loaded

rifles; and various

other drug paraphernalia.

Subsequent to the search, Captain Bourassa stripped
the seized
but

marijuana plants, preserving the

destroying the

Bourassa destroyed

stems and
the stems

been charged with state drug

law

(and

unlike

federal

developed

root

systems

irrelevant

for

sentencing

roots.

At the

time Captain

and roots, defendant

offenses.

law),
on

Bourassa acted in accordance

leaves and buds

the

seized
purposes.

had only

Under relevant state

presence
marijuana

vel
___

non of
___

plants

Apparently,

is

Captain

with his customary practice for

-22

the

securing of

marijuana

evidence when

he destroyed

the

plants' stems and roots.

Eventually, this
grand jury.

matter was referred

to a federal

The grand jury returned a four-count

charging defendant with

manufacturing marijuana,

marijuana

to

with

intent

firearms in relation to
was

distribute,

and

indictment
possessing

carrying

a drug trafficking crime.

tried to a jury and on

two

The case

February 12, 1993, the defendant

was found guilty on the charge of manufacturing marijuana and

the lesser included offense of possessing

marijuana.

U.S.C.

841(a)(1), 841(b)(1)(B), and 844.

acquitted

of

possessing

distribute.
firearms

The

jury

charges.

the

marijuana

also

acquitted

Subsequent

to

See 21
___

However, he was
with

intent

defendant

trial

and

to

of

the

prior

to

sentencing, the marijuana leaves which had been stripped from

the

seized

plants

(and

which

had

been

introduced

into

evidence at trial) also were destroyed.

A
July

sentencing hearing

28, 1993.

originally

was convened

on

During the course of that hearing, defendant

raised several legal issues

that, in the court's estimation,

required further

Accordingly, the

the hearing and

On December
took

continued the proceedings

9, 1993,

testimony

enforcement

briefing.

from

at the

court recessed

to a later

reconvened hearing,

Captain

officials regarding,

Bourassa

and

inter alia, the

_____ ____

date.

the court
other

law

number of

-33

plants seized

during the

whether those plants

also

heard

presented

on

the

legal

issues

At the conclusion of the evidence

188 marijuana

Pursuant to

U.S.S.G.

plants were

involved in

the provisions of and commentary

2D1.1, this finding resulted in a base offense

of 26.

firearm,

defendant on

The court

the court rejected defendant's legal arguments

offense.

level

from

in this appeal.

determined that

this

trailer and

had developed root systems.

argument

and argument,
and

search of defendant's

After adding two

subtracting

responsibility,

and

two

levels for

levels

ascertaining

possession of a

for
that

acceptance
defendant

had

of
a

Criminal History Category of I, the court determined that the

relevant

guideline sentencing

then sentenced him to 63 months

a

four-year

term

of

range was

II.
II.
___

It

in prison, to be followed by

supervised

followed.

63-78 months.

release.

This

appeal

DISCUSSION
DISCUSSION
__________
Defendant makes

three arguments on appeal.

First,

he contends that the destruction of the plant roots and stems

prior

to

trial

constitutes

a due

process

violation

entitles him to a recalculation of his sentence.

defendant
evidence

asserts

that

the

destruction

that was admitted at

sentencing hearing.

and

Similarly,

of the

marijuana

trial deprived him

of a fair

Finally,

defendant

argues

that

the

determining

the

-44

district
number

court

committed

legal

of plants involved in

error in

the offense.

We discuss each

argument in turn.

A. Destruction of Plant Roots Prior to Trial

A. Destruction of Plant Roots Prior to Trial
_____________________________________________
Defendant's
"`what might

first argument

loosely be called the

guaranteed access to evidence.'"

implicates the

law of

area of constitutionally
See Arizona v. Youngblood,

___ _______
488 U.S.

51, 55 (1988) (quoting United States v. Valenzuela_____________

___________

Bernal,
______
State,

__________

458 U.S. 858, 867 (1982)).

by

destroying the

The argument is that the

evidence

upon which

defendant's

sentence was premised, violated his due process rights.

specifically,

defendant contends

portions

of the

mounting

an effective challenge to both

to

Captain

seized

to trial

Bourassa's testimony

that

had developed root systems.

to the number
observable
whether

of plants
evidence

marijuana

sentencing
596,

plants prior

that

of

should

purposes, see
___

be

destruction

precluded him

of
from

the plant count and

each

of the

plants

And, since the law looks

and to whether
root

the

More

there is

formation'"

in

counted

United States
_____________

as

"`readily
determining

"plant"

v. Burke,
_____

for

999 F.2d

601 (1st Cir. 1993) (quoting United States v. Edge, 989

_____________
____

F.2d 871,

879 (6th Cir.

1993)), defendant argues

-55

that this

effective

denial

of

potentially

exculpatory1

evidence

prejudiced him at sentencing.

The problem
Supreme Court has

with defendant's argument

clearly stated that

preserve potentially
the

level of

defendant

can show

bad faith

488

at

Youngblood,
__________
relying at

U.S.

least in part

state court matter (where

irrelevant for

sentencing

destroyed

plant

the

violation
on the

58.

States v.
______
denied,
______

114 S.

____________________

Here,

the

989

district court,
only a

formation is

Captain
and

Bourassa

supportably

not act in bad faith.

not clearly erroneous,

F.2d

546, 556
114 S.

to

criminal

that this was

purposes) when

to

the police."

the presence of root

Ct. 148 and

___

dispositive here.

unless "a

portions, explicitly

finding was

Barnett,
_______

does not rise

part of

on the fact

found that Captain Bourassa did

because this

a State's failure

exculpatory evidence

due process

is that the

(1st

Ct. 149

And,

cf. United
___ ______

Cir.),

cert.
_____

(1993)), it is

1. Defendant does not specifically assert that there were

fewer than 188 plants in the trailer or that the plants
seized did not have observable root formation.
Rather,
defendant argues that the destruction of the plants prevented
him from examining evidence which might have impeached the
_____
law enforcement officials' testimony on these issues.
-66

Accordingly,
the

destruction

of

we
the

reject defendant's
plant portions

argument that

violated

his

due

process rights.2
B. Destruction of Evidence Admitted at Trial
B. Destruction of Evidence Admitted at Trial
_____________________________________________
Defendant's second argument, that
fair sentencing
marijuana

because the

leaves that

it

he was denied

government destroyed
had introduced

the dried

into evidence

at

____________________
2. In his brief, defendant makes two additional and related
arguments. First, defendant perfunctorily asserts that the
Youngblood bad faith requirement does not obtain where there
__________
has been
a deliberate (as opposed
to an accidental)
destruction of evidence.
We see no merit in this argument.
Neither Youngblood itself, nor its organizing principle,
__________

suggest that the act by which the potentially exculpatory

evidence is destroyed need be inadvertent.
The Youngblood
__________
Court was concerned with "limit[ing] the extent of the
police's obligation to preserve evidence to reasonable bounds
and confin[ing] it to that class of cases in which the police
themselves by their conduct indicate that the [destroyed]
evidence could form a basis for exonerating the defendant."
Id. at 58.
Mere intentionality in the act of destruction
___
does not indicate a tendency to exonerate; after all, a
police officer can intentionally destroy evidence he/she
truly believes is irrelevant.
Something more is clearly
needed, and the Court has determined that that something
should be a demonstration of bad faith.
Defendant also seems to be arguing that the federal
authorities' decision to proceed against him subsequent to
the destruction of the plants' roots in and of itself gives
__ ___ __ ______
rise to an inference of exploitation, constitutes bad faith,
and should be considered a due process violation.
To the
extent that he is so arguing, the argument is specious.
We
simply are at a loss to see any merit in a rule whereby we
would infer bad faith on the part of government prosecutors
merely
because they
bring a prosecution
after State
_____
authorities have destroyed some potentially relevant or
exculpatory evidence.
In this context at least, bad faith
cannot be inferred; instead, we think it clear that a
successful prosecutorial misconduct argument must be premised
upon independent evidence that the prosecution was somehow
improperly motivated. Here, there was no such evidence.
-77

trial, requires little discussion.

way relevant to the district court's

This evidence was

in no

sentencing calculation;

it

was the

leaves,

that

determining
pointed
fact

plant count,
the

and not

district

defendant's

the weight

court

sentence.

took

into

Thus,

as

out at sentencing, there was

that the marijuana

of the

dried

account

in

the district

"no prejudice from the

introduced at trial

. . .

was not

available at sentencing."3
Accordingly,
the

destruction of

we

this

reject defendant's
evidence somehow

argument that

compromised

the

justness of his sentencing.

C. Number of Plants Involved in the Offense
C. Number of Plants Involved in the Offense
____________________________________________
Defendant's third
district court

and final

erred in taking

argument is

the 155 smaller

that the

plants into

account

in determining that 188 plants

crimes.

As noted above, see supra note 1, defendant does not

___ _____

specifically allege

that fewer

were involved in his

than 155 plants

between one

____________________
3. Without
explanation,
defendant
asserts
that
the
destruction of the
leaves "hindered [his]
ability to
challenge the plant count as to the 155 seedlings." Although
it is not entirely clear, it appears that the point defendant
is driving at is that the amount of leaves may have somehow
___ ____
appeared inconsistent with a finding that 155 plants between
one and three feet in height were involved in his crimes.
This argument is not persuasive. First of all, a mass of
removed and dried leaves is, at best, only marginally
probative on the question of how many plants it took to
generate the leaves.
And, to the extent that it is
probative, the sentencing judge, who presided at trial and
viewed the leaves at that time, had an ample opportunity to
take
it into
account
in making
his drug
quantity
determination.
-8-

and

three

Rather,

feet

in

he argues

definition

of the

height

were present

that the
word

court

in

the

applied an

"plant" in

trailer.

overly broad

deciding

that the

155

plants should be included in its drug quantity determination.

Relying upon testimony that only female marijuana plants have
commercial
eventually

value

and

weeded

that

out

asserting that

the

differentiated

because

of

that the

"mixture

or substance,"

marijuana

marijuana
had

their

155 plants

and 841(b)(1)(B)(vii),
___

("mixture

by

155 plants

contends

sentencing purposes.

male

growth

include materials that must

and

been

defendant
a

841(b)(1)(A)(vii)

be taken into

purposes of

sexually

not considered

see 21 U.S.C.
___

for

distributors,

stage,

See U.S.S.G. App. C,

___

or substance"

are

not yet

should be

which can

plants

account for

Amd't 484 (1993)

841 "does

not

be separated from the controlled

substance before the controlled substance can be used").

While
several

ingenious,

reasons.

First,

defendant's
21

U.S.C.

argument fails
841

for

clearly

distinguishes between

"a mixture

or substance containing

detectable amount of marihuana"

and "marihuana plants."

See
___

21 U.S.C.

and 841(b)(1)(B)(vii).
___

The

841(b)(1)(A)(vii)

statute

does

relation

to

amendment

not use

the

term "mixture

marijuana plants.

See
___

or

id.
___

substance" in
Therefore,

upon which defendant relies does

the

not apply in the

context of marijuana plants.

-99

Moreover,

although

we

have

yet

to

address

defendant's specific gender-distinction argument, we have, in

a

very similar

context,

rejected an

argument that

plants

which would be weeded out prior to distribution should not be

included in

the drug

See United States v.

___ _____________
cert.
_____

denied, 112
______

quantity determination at

sentencing.

McMahon, 935 F.2d 397, 399

_______

(1st Cir.),

S. Ct.

underlying our rejection

272 (1991).

The

primary reason

of defendant's argument in

McMahon

_______
applies to this case

with equal force:

to punish growers of

marihuana by the scale or

potential of

their operation and

not just by the weight [or

size] of the

plants

seized

at a

United States v.
_____________
1990)).

given moment.'"

Fitol, 733
_____

"`Congress

Id. at
___

F. Supp. 1312,

intended

401 (quoting

1315 (D.

Minn.

Here, as in McMahon, Congress's intent must be given

_______

effect.
Finally, we note that

three of our sister circuits

have rejected nearly identical gender-distinction challenges.

See
___
cert.
_____

United States v. Proyect, 989 F.2d 84, 86-88 (2nd Cir.),

_____________
_______
denied, 114 S. Ct. 80 (1993); United States v. Curtis,
______
_____________
______

965 F.2d 610, 616 (8th Cir. 1992); United States v. Webb, 945
_____________
____
F.2d

967, 968-69 (7th Cir.

1228 (1992).

1991), cert. denied,

_____ ______

112 S. Ct.

We find the reasoning of these cases persuasive

and applicable to the argument before us.

-1010

Accordingly, we reject
the

court erred in including

defendant's assertion

the 155 smaller

that

plants in its

drug quantity calculation.

III.
III.
____
CONCLUSION
CONCLUSION
__________
Finding

each

of

defendant's appellate

unpersuasive, we affirm his sentence.4

Affirmed.
Affirmed.
_________

arguments

____________________
4. Our opinion should not, of course, be construed as
endorsing the destruction of evidence that took place here.
We think it obvious that law enforcement officials wade into
dangerous waters when they eliminate evidence which has even
a remote potential for being relevant at trial or sentencing.
This is especially true where, as here, inexpensive means of
memorializing the nature of the evidence (e.g., photographs
or videotape) are widely available.
-1111